An argument has been circulating among law professors, posted on various legal blogs and picked up by more popular political blogs, declaring House Speaker John Boehner's invitation to Israeli Prime Minister Benjamin Netanyahu to address a joint session of Congress "unconstitutional." My immediate reaction was one of surprise to see this argument even surfacing and seriously making the rounds. While I have long known not to take the ramblings of law professors on constitutional issues too seriously, I failed to heed my own admonition. This was so facetious that even I didn't see it coming. Yet what I found most disturbing was its emanating with certain academics claiming to root their argument in textual and originalist constitutionalism.
The rather absurd contention seems to have originated on Opinio Juris with Temple University law professor Peter Spiro arguing that Congress has violated the "the logic of presidential control" in diplomatic relations. Even the White House, where an official told reporters that Netanyahu
had "spat in our face" by accepting the invitation, has only called the
Boehner invitation a mere "breach of protocol". Spiro writes, "If this were happening beyond the political anomalies of the Middle East, I wonder if it might be using some stronger language." Oh really? Had John Boehner invited one of the Castro brothers without White House permission to address Congress upon Obama's normalizing relations with communist Cuba, would the White House have even complained about a so-called "breach of protocol"? This question answers itself.
Even the Volokh Conspiracy's reliably pro-Israel George Mason University law professor David Bernstein joined Spiro's ranks. "Since I give Obama a hard time when he acts unconstitutionally and
contrary to the separation of powers, I hereby give Boehner a hard time
for inviting Netanyahu despite the absence of any apparent
constitutional authority to do so," Bernstein writes. Perhaps he has shared his hand right there, attempting to increase his constitutional bona fides at the expense of his well known unassailable pro-Israel views, with very little downside. If that's the case, he has chosen the wrong issue to use for such a demonstration. I am not attacking motives, but rather commenting on the professor's own statement. Me thinks though doth protest too much.
Bernstein does little but rehash Originalism Blog's University of San Diego law professor Michael Ramsey's post and write that they "do strike me as likely being right." Ramsey's argument is all the more distressing given that it claims the mantle of originalist interpretation of the Constitution. Ramsey's argument amounts to the following: "First, Congress has no Article I, Section 8 to host a foreign leader... Second, reception of foreign leaders is an exclusive power of the
President. Article II, Section 3, provides that 'he [the President]
shall receive Ambassadors and other public Ministers.'... The President’s power here is properly understood as exclusive." He then goes on to cite a historical affair involving the Presidency of George Washington as evidence of original meaning.
While it is true that Congress has no such power explicitly listed in Article I, Section 8, it is also true that pointing that out is utterly irrelevant. Congress is not exercising a legislative power, but merely hosting a speaker. No law is being passed, no vote is being taken. A close ally is addressing Congress, and Congressmen clearly have the ability to listen to speeches. The Weekly Standard's legal blogger Adam White further rebuts both the points made by Ramsey rather convincingly, and is worth excerpting at length:
True, Congress does not have a specific, explicit constitutional authorization to meet with foreign leaders, but then again the same could be said of Congress's convening of hearings, oversight inquiries, public events, or other receptions undertaken to support Congress's ultimate lawmaking and appointment-confirming actions. Congress does, after all, have constitutional powers to make appropriations in support of foreign policy, to confirm the appointment of diplomatic personnel, and to ratify treaties. Hearing from foreign leaders -- merely hearing from them -- can support those constitutional objectives, just as congressional hearings support Congress's legislative actions... Ramsey attempts to analogize this to the "Citizen Genet Affair," the 1793 episode in which the French government directed communications to Congress, rather than to President Washington, in the hopes of finding an audience more receptive than the Washington administration, given its neutrality between Britain and France... The administration, through Secretary of State Jefferson, asserted that the president alone was "the only channel of communication between this country and foreign nations," and Congress acquiesced to that assertion of power. But this analogy loses all sense of proportion: France's efforts in 1793 -- commissioning privateers, planning land-based expeditions in the United States, and establishing French prize courts in the United States -- went well beyond the mere speech that Netanyahu would make to Congress. Indeed, one wonders how far such arguments against Congress cut. Would Professor Spiro argue that members of Congress cannot travel abroad to meet foreign officials -- such as Nancy Pelosi's 2007 visit to Syria? Would Professor Ramsey prohibit Republican presidential candidates, including members of Congress, from traveling abroad to meet with foreign audiences and leaders, as President Obama did in 2008 -- including a meeting with Netanyahu, and then-Prime Minister Olmert -- and Governor Romney did in 2012?... Nothing Congress does, pursuant to its longstanding constitutional powers affecting foreign policy, will confuse anyone as to the official position of the United States, under President Obama, with respect to Israel... Finally, speaking of the Supreme Court, Professor Spiro's aggressive criticism of Congress's relations with foreign leaders conveniently leaves aside the third branch of government: the Supreme Court. Would Spiro, or other law professors critical of Congress and Netanyahu, impose similar constraints on the Court's communications with foreign nations and leaders? The Court often receives "amicus briefs" from foreign nations and leaders, urging the Court to adopt various constitutional interpretations -- not just in the small subset of cases "affecting ambassadors, other public ministers and consuls" (over which the Court has constitutional jurisdiction), or even in cases affecting foreign policy more broadly (e.g., Guantanamo and immigration), but also those involving purely domestic issues of constitutional law, such as the death penalty. Would Spiro and others prohibit the Supreme Court from accepting any such briefs, except the briefs authorized by the president? Or is Congress the only branch of government that must be walled off from foreign voices?While White authored a highly persuasive rebuttal to the silliness circulating among some in legal academia, he also made a fundamental error. He conceded "that the president's authority to 'receive Ambassadors and other public Ministers' is surely a broad grant of power," and launched his counterargument after agreeing to that faulty foundation. The "Father of the Constitution" James Madison wrote in 1824, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution." Alexander Hamilton in March 1788 said in Federalist no. 69 during the ratification debates:
The President is also to be authorized to receive ambassadors and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor.The idea that this very clause provided a "broad power" over foreign affairs was the "declamation" of those who opposed ratifying the U.S. Constitution. It is precisely an argument of those who argued against the Constitution becoming the supreme law of the land in the first place, warning against an overpowering executive. In turn, Hamilton made clear during the debate over ratification that it contained no such authority, but was merely a formalism allowing the President to receive ambassadors without the legislature convening. This is precisely the opposite of the conventional wisdom espoused by even the rebuttal to the frivolous arguments advanced by those arguing Boehner violated the Constitution.
Justice Joseph Story wrote in his "Commentaries on the Constitution" in 1833, "From the nature and duties of the executive department, he must possess more extensive sources of information, as well in regard to domestic as foreign affairs, than can belong to congress." This is in no way precludes the Congress inviting the leader of a close ally to address a joint session.
Despite protestations from some legal scholars, the House Speaker does not have to "consult" the President before issuing an invitation to a close ally to address Congress. Congress is not a subservient branch of government to King Obama, and nothing in the Constitution suggests as much. Lawless Obama's spokespeople whined about Boehner breaching "protocol" in issuing the invitation to one of our closest allies. I shed no tears. This coming from the President who has repeatedly threatened to act without Congress (i.e., to act with his his phone and pen), having made good on those threats. Yet now he has the gall to protest a "breach of protocol"? Netanyahu was wise to accept the invitation to sway the American people and U.S. Congress away from a delusional foreign policy. As of today he is scheduled to address a joint session on March 3, primarily on the threat posed by that Islamic Republic gaining nuclear weapons.
The White House has announced they will arrange no meeting between President Obama and Prime Minister Netanyahu during the Israeli leader's visit to Washington. While this is revealing in and of itself regarding the President's relationship with the State of Israel, it is indeed his Constitutional prerogative. Tweet
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